InteriorCo Vic Pty Ltd T/A Zenith Interiors

[2020] FWC 4594

[2020] FWC 4594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

InteriorCo Vic Pty Ltd T/A Zenith Interiors
(AG2020/2378)

DEPUTY PRESIDENT CLANCY MELBOURNE, 31 AUGUST 2020

Application for approval of the Zenith Interiors Sandringham Enterprise Agreement 2020-2022.

[1] An application has been made for the approval of an enterprise agreement known as the Zenith Interiors Sandringham Enterprise Agreement 2020-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by InteriorCo Vic Pty Ltd T/A Zenith Interiors (the Applicant). The Agreement is a single enterprise agreement.

[2] I intend to address a number of matters that are apparent from the Application.

[3] As a response to the COVID-19 pandemic, commencing on 1 May 2020, the Fair Work Commission Rules 2013 (the Rules) no longer require statutory declarations to be lodged with the Commission. Instead, the Rules simply require lodgment of a signed, but not witnessed, declaration.

[4] The Application has been accompanied by a Form F17-Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17) but it is neither signed nor dated.

[5] Section 185(2)(a) of the Act states that the Application must be accompanied by a signed copy of the Agreement. Section 185(5) of the Act outlines that the Fair Work Regulations 2009 may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A outlines that a copy of an enterprise agreement is a signed copy only if:

•  It is signed by the employer covered by the Agreement and at least one representative of the employees covered by the agreement; and

•  Includes the full name and address of each person who signs the agreement; and

•  An explanation of the person’s authority to sign the agreement.

[6] On the material before me, the Application has not been accompanied by a signed copy of the Agreement.

[7] At Question 20 of the Form F17, it is stated that on 30 July 2020, the steps taken to notify the relevant employees by the start of the access period of the time and place at which the vote was to occur were that the employees were informed “verbally” that a vote would take place at Tulip Street Sandringham at 9.30am by raising hands. At Question 25 of the Form F17 it is recorded that the date voting for the Agreement commenced was 30 July 2020 and that the Agreement was made on that day.

[8] Section 180(3) requires an employer to take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method by the start of the access period for the Agreement and s.180(4) of the Act defines the access period as the 7-day period ending immediately before the start of the voting process. The information in the Form F17 suggests that the Applicant did not notify the relevant employees of the time and place at which the vote will occur and the voting method by the start of the access period for the Agreement and it is not apparent on the material before me whether it took all reasonable steps to do so.

[9] I also observe that the Agreement incorporates certain provisions of the National Joinery and Building Trades Products Award 2002 but it is unclearfrom the Form F17 whether the employees were given a copy or had access to the text of these provisions during the access period. 1

[10] As to these matters:

a) The Form F17 has been neither signed nor dated, as required by the Rules;

b) The Application has not been accompanied by a signed copy of the Agreement;

c) It does not appear as though s.180(2) of the Act has been complied with; and

d) It does not appear as though s.180(3) of the Act has been complied with and I do not consider this non-compliance is capable of being regarded as a minor procedural error.

[11] Having regard to these matters, the Application has not been made in compliance with the Rules, nor does it comply with s.185(2) of the Act and I am not persuaded on the material currently before me that it has been genuinely agreed by the employees in the sense required by s.188 of the Act. As such, I do not consider it appropriate to consider the Application any further and I dismiss it. The matters I have identified should be properly addressed in any further application.

[12] When that occurs, I suggest the Applicant also address the following issues that were apparent in the Application before me:

•  At clause 28 of the Agreement, it was stated that apprentices who are 21 years of age and over at the time of entering into an apprenticeship with the Applicant will be paid at the Group 1 rate under “the Award” as a minimum. If “the Award” is a reference to the National Joinery and Building Trades Products Award 2002, it would seem that adult apprentices covered by the Joinery and Building Trades Award 2010 (the modern award)would not be better off overall if the Agreement had applied to them and this should be addressed in any future agreement.

•  If any future agreement is to apply to shift workers, regard should be had to terms and conditions relating to shift workers in the modern award.

•  The operative date of any future agreement will need to comply with s.54 of the Act.

•  If the CFMMEU intends to be covered by a future agreement, a Form F18- Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) should accompany the application for the approval.

[13] As outlined above, the Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722276>

 1 Fair Work Act 2009 – s.180(2).